Jarrad v Santamaria (No 2) - [2006] SASC 117

Supreme Court of South Australia
(Civil: Application)
JARRAD v SANTAMARIA & ANOR (No 2)
Judgment of The Honourable Justice Gray (ex tempore)
12 April 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES
Application for leave to appeal to Full Court against decision allowing an appeal against a costs order of a magistrate - application for extension of time within which to apply for leave to appeal - application for extension of time granted given that delay was caused by applicant's solicitor - application for leave to appeal refused.
Summary Procedure Act 1921 (SA) s 189(2)(a), referred to.
Jarrad v Santamaria and Anor [2005] SASC 196, considered.

JARRAD v SANTAMARIA & ANOR (No 2)
[2006] SASC 117
Civil
GRAY J

This is an application brought by the first respondent, Antonio Santamaria, for leave to appeal to the Full Court against a decision allowing an appeal against a costs order of a magistrate.
The rules of court require that there be an application for leave to appeal. There is no right of appeal. The application for leave must be made to the judge against whose order the complaint is made in the first instance. Mr Santamaria now seeks an extension to bring an application for leave.
On 31 May 2005, I allowed an appeal brought by the appellant, Andre Jarrad, against a costs order of a magistrate arising from proceedings in which Mr Santamaria and his wife sought a restraining order against Mr Jarrad.[1] On the basis of supporting affidavits sworn by the Santamarias, the magistrate initially made an ex parte order restraining Mr Jarrad from making any form of contact with the Santamarias and their children. That ex parte order subsequently came on for consideration inter partes. The restraining order was not confirmed at trial.
[1] Jarrad v Santamaria and Anor [2005] SASC 196.
Mr Jarrad applied to the magistrate for costs pursuant to section 189(2)(a) of the Summary Procedure Act 1921 (SA) on the basis that the Santamarias had acted in bad faith and unreasonably in bringing the ex parte proceedings. The magistrate rejected the application. Mr Jarrad appealed to this Court against the costs order.
On 14 June 2005, a notice of appeal to the Full Court was filed on behalf of Mr and Mrs Santamaria by their solicitor. The notice was filed within time for an application for leave but without leave of the court as required by the rules of court. The notice was not served on the solicitor acting for Mr Jarrad.
On 6 April 2006, a judge of this Court dismissed the notice as incompetent as no leave to file the notice was sought or given in time. On that occasion, the judge also dismissed an earlier application made by Mr Santamaria for an extension of time within which to apply to set down the appeal on the basis that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 117
Decision Date: 12 April 2006

CaseChat Overview and Summary

In the matter of Jarrad v Santamaria (No 2), the appellant sought leave to appeal against a decision of the District Court of South Australia, which had allowed an appeal against a costs order made by a magistrate. The appellant was the party that had initially lost the case before the magistrate and had subsequently lost the appeal against the costs order. The legal issue before the Full Court was whether the appellant should be granted leave to appeal against the decision of the District Court and whether the application for an extension of time to apply for leave should be granted. The Full Court had to consider whether the delay in lodging the application for leave to appeal was caused by the appellant's solicitor and whether it was reasonable for the appellant to have delayed in lodging the application.

The Full Court held that the delay in lodging the application for leave to appeal was caused by the appellant's solicitor, and it was reasonable for the appellant to have delayed in lodging the application. The Full Court found that the appellant's solicitor had failed to advise the appellant of the need to lodge the application for leave to appeal within the required time frame. The Full Court held that the appellant had a good arguable case for leave to appeal, and the application for an extension of time to apply for leave to appeal should be granted. However, the Full Court refused to grant leave to appeal against the decision of the District Court, finding that the appeal was unlikely to succeed and that the appellant had not demonstrated any special circumstances that would warrant the grant of leave to appeal.

The Full Court made an order that the application for an extension of time to apply for leave to appeal was granted and that the application for leave to appeal was refused. The Full Court found that the appellant's delay in lodging the application for leave to appeal was reasonable, given that it was caused by the appellant's solicitor. However, the Full Court held that the appellant had not demonstrated any special circumstances that would warrant the grant of leave to appeal, and the appeal was unlikely to succeed. Therefore, the Full Court refused to grant leave to appeal against the decision of the District Court.

Orders